Argument preview: Can Congress punish a former sex offender for failure to register?

Posted Thu, April 11th, 2013 12:00 pm by Steven Schwinn

Background

In June 1999, Anthony Kebodeaux, an airman stationed at Peterson Air Force Base in Colorado, was convicted by a special court-martial of committing “carnal knowledge” of a “female under the age of 16” in violation of the Uniform Code of Military Justice (UCMJ). Kebodeaux’s conviction grew out of a “consensual” sexual relationship that he had with a fifteen-year-old girl. He was sentenced to three months in prison and received a bad-conduct discharge.

After his release, Kebodeaux moved to Texas, which required him to register as a sex offender; federal law also made it a federal crime for him to fail to register. In particular, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, or the Wetterling Act, made it a federal crime for anyone convicted of a specified sex crime, or anyone sentenced by a court martial for a sex crime, to fail to register in any state where he lived or worked. But while the Wetterling Act created a penalty for failure to register in a state, it did not create a federal registration requirement.

In 2006, Congress changed that. It enacted the Sex Offender Registration and Notification Act, or SORNA, which created both a direct federal requirement to register and a federal penalty for failing to register. The registration requirement, in 42 U.S.C. § 16913(a), says that “[a] sex offender shall register, and keep registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” The penalty, in 18 U.S.C. § 2250(a)(2), makes it a federal crime when someone who is required to register as a sex offender knowingly fails to register, or to update a registration, and that person either “(A) is a sex offender . . . by reason of a conviction under Federal law (including the [UCMJ]” or “(B) travels in interstate or foreign commerce.”

Congress delegated the authority to the Attorney General to specify whether and when SORNA would apply to offenders like Kebodeaux, who were convicted before SORNA’s enactment. The Attorney General then issued regulations that applied SORNA’s registration requirement to all sex offenders, including those who were convicted before SORNA’s enactment.

Kebodeaux first registered in Texas in 2004. At some point, he moved to El Paso. In early August 2007, he reported to El Paso authorities and updated his sex-offender registration. Shortly thereafter, he moved to San Antonio, but he did not update his registration.

Kebodeaux was arrested in San Antonio in 2008. The indictment alleged that he was a sex offender because of his military conviction, and that he violated SORNA’s registration requirement from August 14, 2007, until his 2008 arrest. Kebodeaux moved to dismiss the indictment, arguing that SORNA exceeded congressional authority under the Commerce Clause. The district court denied the motion, and Kebodeaux was convicted of failing to register. He was sentenced to one year and one day of imprisonment, followed by five years’ supervised release.

Kebodeaux appealed, again challenging SORNA’s constitutionality. A panel of the United States Court of Appeals for the Fifth Circuit affirmed his conviction, but a sharply divided en banc court reversed. The majority held that the federal government, having originally released Kebodeaux “unconditionally,” later lacked the power to “reassert” authority over him under SORNA, when he moved only within the state (and not across state lines). (Kebodeaux’s “unconditional” release was key to this holding. By “unconditional,” the court meant that after his release Kebodeaux was no longer in federal custody, that he was not subject to any sort of supervised release or parole, and that he had no other special relationship with the federal government. According to the court, because Kebodeaux’s release was “unconditional,” SORNA’s registration requirement was a “reassertion” of federal authority over him.) As a reassertion of authority, SORNA required some basis, like the Commerce Clause, independent of the government’s prior (and expired) authority over him. The Fifth Circuit held that there was no such independent basis here. The court thus ruled that “under the specific and limited facts of this case” Congress lacked authority to apply both SORNA’s registration requirement and its penalty for failing to register against Kebodeaux.

Petition for certiorari

The government sought review in the Supreme Court, but only on two very narrow questions. The government first asked the Court to revisit the Fifth Circuit’s premise that Kebodeaux was not under a federal registration obligation after his initial release but before SORNA’s enactment. This is important, because if Kebodeaux was under a federal registration obligation during this period, the government could more easily impose SORNA’s registration requirement and penalty on him. The government argued that the Wetterling Act imposed a registration obligation on Kebodeaux during this period, and SORNA’s registration obligation and penalty were simply an exercise of continued authority over him.

The government also sought review on the question whether Congress had Article I authority to penalize Kebodeaux’s failure to register, even if Kebodeaux was not under a registration obligation pre-SORNA. The government argued that Congress’s military, commerce, and spending powers, along with its powers under the Necessary and Proper Clause, gave Congress independent authority to enact SORNA and to apply it against Kebodeaux, even as a “reassertion” of authority over him.

The government framed the questions around SORNA’s penalty provision, particularly Section 2250(a)(2)(A), rather than its registration requirement, even though the Fifth Circuit ruled both provisions unconstitutional, and even though they go hand in hand. The Court granted cert. on January 11, 2013.

Briefs on the merits

The first question – whether the Fifth Circuit erred in assuming that Kebodeaux was not under a federal registration obligation after his release – turns on the application of the Wetterling Act. The government says that the Wetterling Act subjected Kebodeaux to a continued federal registration obligation, because it created a federal penalty for Kebodeaux’s failure to register under state law. The government argues that two separate provisions of the Act applied to Kebodeaux: one that penalized certain specified sex offenders for failing to register, and another that penalized persons sentenced by court martial for certain specified conduct. According to the government, these penalties meant that Kebodeaux was under a continuing federal registration obligation after his release, and that SORNA simply extended that federal registration obligation. The government argues that the Court could correct the Fifth Circuit’s erroneous premise and remand for further proceedings, or that it could reverse the Fifth Circuit outright.

Kebodeaux argues that the Wetterling Act did not create a continuing federal registration obligation after his release. He says that the Wetterling Act created a penalty for failure to register, not a requirement to register, and that in any event the Act did not apply to him and his conduct. Therefore, Kebodeaux argues that the Fifth Circuit was right to rule that SORNA sought to reassert authority over him, and that Congress lacked the power to do that.

The second question – whether Congress had authority to apply SORNA’s penalty to Kebodeaux, even if he had no federal registration obligation pre-SORNA – turns largely on the reach of the Court’s October Term 2009 sleeper, United States v. Comstock. The Court ruled in Comstock that Congress had authority under the Necessary and Proper Clause to authorize the civil detention of federal prisoners who were deemed sexually dangerous, even beyond the term of their original criminal sentence. The Court looked to five considerations in upholding the act: first, Congress has broad authority under the Necessary and Proper Clause to enact laws even when they are several steps removed from an enumerated power under Article I; next, the civil detention authority was just a modest addition to statutes that have been on the books for decades; third, the authority applied to those already in federal custody; fourth, the law properly accounted for state interests; and finally, the links between detention authority and Congress’s Article I enumerated powers were not too attenuated.

The government argues that under Comstock and its five considerations, SORNA’s penalty provision is a necessary and proper means to enforce federal sex offenses, like Kebodeaux’s, that themselves are authorized by Congress’s enumerated powers in Article I. It says that it does not matter if Kebodeaux was not under federal control or authority pre-SORNA, so long as Congress had the power to penalize him for not registering. According to the government, under Comstock’s interpretation of the Necessary and Proper Clause, it did.

Kebodeaux argues that Comstock does not support SORNA’s application against him. In particular, he focuses on the principal difference between his case and Comstock – that in Comstock, but not here, the federal government had direct control over those subject to subsequent federal authority. According to Kebodeaux, this lack of control, along with the other Comstock considerations, means that Congress lacked authority to apply SORNA’s penalty provision against him.

Analysis

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

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